Constitutional Opinions

The Constitutional Amendment Con

Republicans try to placate the base, but the Constitution isn't the problem.

By 8.9.10

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Last Friday, Sen. Lindsey Graham (R-S.C.) let the cat out of the bag: his sudden crusade to reform birthright citizenship is directly related to his need for political cover on amnesty for illegal immigrants.

"Yeah, I think it's fair to say that I need to go home to South Carolina and say: listen, I know we're all upset that we have 12-14 million people illegally, " Graham told National Review's Daniel Foster. "I'm going to have to be practical. We're not going to deport or jail 12-14 million people." Graham's practical solution is the same old "comprehensive immigration reform," the logic of which is that it would not be amnesty for grand theft auto if the perpetrator got to keep the car in exchange for paying a fine and promising to read the owner's manual.

Of course, Graham already gave away the game when he entertained a constitutional amendment to clarify what the 14th Amendment says about birthright citizenship. The New Republic's Jonathan Chait recently snickered at the number of conservative constitutional amendments floating around that have been endorsed by "mainstream Republicans," but the joke is really on conservatives: a no-hope constitutional amendment is the usual way a GOP politician pays lip service to some conservative concern he plans to do nothing about.

A classic example is the antiabortion human life amendment. At its peak in 1984, it got 49 votes in a Republican-controlled Senate with a sympathetic, articulate pro-lifer in the White House -- 18 votes short of passage, two shy of a simple majority. Fast forward more than twenty years to the federal marriage amendment. With a 10-seat Republican majority in the Senate and a sympathetic if inarticulate president, the gay marriage amendment failed 49 to 48.

What do conservatives have to show for the Republicans' election-year promises to support the human life amendment and the federal marriage amendment? Absolutely nothing, unless you count 37 years of Roe v. Wade and a Supreme Court that is within Anthony Kennedy's vote of issuing a similarly sweeping decision redefining marriage.

Then there is the school prayer amendment, the broader religious freedom amendment, the balanced budget amendment, the term limits amendment, the flag-burning amendment, the parents rights amendment, the victims' rights amendment and even an old amendment that was supposed to stop forced busing. None of them have gone anywhere. Most haven't even cleared a single chamber of Congress. Even the more worthwhile ones, like the spending limitation amendment, will probably never be ratified.

These constitutional amendments are a cheap and easy way to pretend to deal with issues that fire up the Republican base but bore the GOP establishment. You know, trivialities like the sanctity of human life, mounting budget deficits, and the integrity of the country's borders and sovereignty. Republicans will never be expected to pass these amendments or even really work that hard for them, but they will be able to claim credit on their position papers.

Even the conservative politicians who are sincere in their support for these amendments are missing the point. A constitutional amendment should be proposed to remedy some flaw in the Constitution. Of the amendments Chait lists in his blog post, only Sen. Lisa Murkowski's (R-AK) proposal arguably fits the bill, if you are of the view that D.C.'s lack of voting representation in Congress is a flaw.

But the problem in most cases isn't with the Constitution. The problem is with the judges our elected officials appoint, confirm, and then let run amuck. When these judges issue rulings that bear little resemblance to the original public meaning of the constitutional provisions they are interpreting, that make a mockery of self-government, and that otherwise overstep their bounds, it isn't good enough to draw up hopeless constitutional amendments that in many cases simply reassert what the Constitution already says in the first place.

There is a powerful case to be made that the reigning interpretation of the 14th Amendment's citizenship clause is bogus and could be fixed legislatively, rather than through constitutional amendment. There is also Article III, Section 2 of the Constitution which allows Congress to regulate the jurisdiction of the federal courts, including the Supreme Court. The elected branches of the federal government already have the constitutional authority to fight back against -- and even end -- judicial activism.

In 2004, while the Republicans still controlled Congress, a jurisdiction-stripping bill intended to reinforce the 1996 Defense of Marriage Act actually passed the House. The Bush administration said the president would sign it. If the Senate had acted on it rather than wasting its time with the federal marriage amendment, the debate over that particular issue might look very different than it does right now. Instead the bill died in committee, in keeping with GOP senators' priorities.

If conservatives have a different set of priorities, constitutional amendments with little chance of passage should be very low on that list.

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About the Author

W. James Antle III, author of the new book Devouring Freedom: Can Big Government Ever Be Stopped?, is editor of the Daily Caller News Foundation and a senior editor of The American Spectator. You can follow him on Twitter @jimantle.